EL PASO, Texas (KTEP) - A Texas appeals court overturned Leonel Hernandez’s 2019 murder conviction after citing an error by a trial judge that “improperly” allowed prosecutors to criticize a blood spatter expert.
Hernandez, 37, has been in prison for the last three years after a jury found him guilty of fatally shooting former KLAQ DJ Richard Madrigal in his West Side apartment in 2016. The trial was held in the 168th District Court under Judge Marcos Lizarraga.
Last Tuesday, two of the three-person 8th Court of Appeals sided with Hernandez, who appealed his conviction on June 7, 2019, two weeks after his trial. The court’s judgment and opinion sends the case back to the 168th District Court for a new trial.
A new trial date has not been set.
"We are aware of the appellate decision and our appellate division will be handling the matter," according to a statement from emailed from the El Paso District Attorney's Office
KTEP has also reached out to Hernandez's attorney Jim Darnell for comment.
Chief Justice Yvonne Rodriguez and Justice Jeff Alley agreed the trial court overseeing the case "improperly allowed" prosecutors to impeach, or attack the accuracy of Hernandez's expert witness Louis Akin.
Akin is a crime scene reconstruction expert and former El Paso Police Department officer.
He testified Hernandez could not have shot Madrigal. His testimony focused on an arc of blood found inside the apartment where Madrigal was shot, according to the appeal court’s summary and opinion.
Akin testified blood on Hernandez’s pants conflicted with testimony that he was the shooter. Akin said due to the estimated distance the shooter had from Madrigal, blood would not have splattered on the person who shot and killed him.
"Because the heart of Appellant’s (Hernandez's) defense was the expert’s opinion that it would have been physically impossible for Appellant to have been the shooter, and the impeachment evidence used by the State against the expert was improperly admitted, we reverse the trial court’s judgment of conviction, and remand for a new trial," an opinion from Justice Alley states.
Prosecutors attacked the accuracy of Akin’s testimony by bringing up a civil case in the Missouri Supreme Court, according to the opinion from Justice Alley.
Akin had perjured himself during that case involving the victim of a stabbing who blamed the convenience store where it happened, according to the opinion. He was acting as a blood spatter expert in that case as well.
During a cross-examination, Akin was asked if he was involved in a major investigation where he had been retained by the U.S. Government. He answered that he had just finished reconstructing the 2009 Fort Hood shooting by Major Malik Hasan.
The victim of the stabbing won their case but a new trial was granted to the convenience store after it was discovered that Akin was not retained by Hasan and not the U.S. Government.
“In response to the motion for a new trial, the attorneys that had hired Akin pointed out that Akin had been hired in the Hasan case by a JAG defense lawyer and paid by the United States Government, rendering his answer truthful,” the opinion from Justice Alley states.
In Alley’s opinion, prosecutor’s focus on the perjury charge against Akin did not support how he could have a bias for Hernandez in the El Paso trial.
According to Alley’s summary and opinion, Hernandez’s attorneys tried to stop prosecutors from bringing up the Missouri case but Judge Marcos Lizarraga allowed it saying “I view this a lot like if you impeach somebody with a conviction, a prior conviction, you never know what the underlying facts are.”
Alley disagreed with Lizarraga’s reasoning, pointing to a part of the law that says witnesses’ general character for truthfulness or credibility can be attacked through reputation or testimony from others. But specific incidents cannot be used as examples.
“Reduced to simpler terms, the Rule rejects the notion that “Once a liar, always a liar,” Alley’s opinion states.
Justice Gina Palafox wrote a dissenting opinion stating that Hernandez was able to present a defense and evidence of an error stated in Hernandez's appeal was minimal.
"Instead, I would conclude that error, if any, in permitting the State to question Akin on the March case was harmless," Palafox wrote.
